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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-14 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2009. Page 2764.)

The Hon. D.G.E. HOOD (15:45): From time to time a bill will be introduced in this place that appears sensible and compassionate but which, nonetheless, is worthy of further discussion—and, in fact, demands critical debate. I believe this is one of those bills. It asks many very complex questions about which people have varying views, a number of which I will list as follows:

Should a woman be able to use frozen sperm kept over from a deceased partner?

Should a single woman be able to access the technology to have a child on her own?

Should a lesbian couple have the right to a child through assisted reproductive technology, as has been suggested in an amendment tabled in this place by the Hon. Mr Hunter?

Is the choice to have the child a right, as much as looking out for their care becomes our parental responsibility after exercising that right?

These questions go to the core definition of what it means to be a family and to raise a family, and these are questions in which Family First is very much interested. It is the family that we are determined to preserve and foster.

In considering this bill, the key question for Family First is not about the rights of the parents; rather, before any issue of parental choice or so-called rights are considered, we believe that the well-being of any child born as a consequence of the bill we are debating today must be considered. I have a letter from a man (who at this stage will remain anonymous) who was conceived some 35 years ago at the Queen Elizabeth Hospital as a product of donated sperm. He recently gave a talk to a fifth year Adelaide University medical students' lecture, where he talked about how bewilderingly complicated his birth has made his own quest for identity and belonging.

The man talks about the 'debt of being alive', an existential debt that he owes his anonymous sperm donor father, whom he is on a quest to find. He has become a medical researcher himself, and he notes:

I conduct experiments on a daily basis in a lab and at times I feel like one of those. My life feels like it has been denigrated to an experiment in modern medicine and social science…It is hard not to think of my conception as being reduced to creating more stock for the human herd. Donor conception is a misnomer as to donate something is to freely give something without expecting anything in return. And while many state that they do it for altruistic reasons, they all get paid. While it is supposedly a reimbursement to cover costs incurred by the donor it is still payment and one which essentially commodifies human life. I was thrown away in a plastic cup for what was in essence 'beer money'.

Those are very strong words which will, no doubt, illicit varying views from members in this place. However, the point I am making is that this individual has been through the process himself and obviously has very strong feelings about it. I am sure no-one would want him to feel this way, that he is the result of what, to some extent, were unintended consequences of laws passed in this place in times gone by.

This bill opens up complicated moral questions. As I said, this man believes he owes an 'existential debt' (to use his own words) to the father the system prevents him from knowing, yet he feels cheapened by the process by which he came into the world and his life has been lessened by an inability to connect with and know his biological father. He wants to know his dad. Not all in his circumstances feel the same way, of course, but he certainly does, and no doubt there are others like him—not all, but there would be a good number who do. We should not discount his feelings. I think this gentleman speaks with some authority on the matter, having experienced it himself, and we would all do well to consider his feelings as we come to cast our vote on this bill. Near the end of his letter, the man notes:

Australia is a signatory on the United Nations Conventions on the Rights of the Child. We have also ratified it. However, we have failed to implement its articles. It quite clearly states that every child has a right to know and be cared for by its parents, a right to his or her identity, including nationality, names and family relations.

The provision to which he refers is contained within article 7 of the United Nations Conventions on the Rights of the Child. In article 3, it states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The concept that the best interests of the child must be held paramount is acknowledged not only by the United Nations (which I have just referenced) but also in our family law system and by our state agencies such as Families SA. This concept is also found in section 10 of the Reproductive Technology (Clinical Practices) Act 1988, which is repealed by this bill but which currently provides:

The welfare of any child to be born in consequence of an artificial fertilisation procedure must be treated as of paramount importance, and accepted as a fundamental principle, in the formulation of the code of ethical practice.

It is wrong that this bill removes that central concept which gives primacy to the rights of the child and, as in clause 7, puts the wishes of prospective parents at the same level. I will be moving an amendment to retain the focus in the bill on the rights of the child being of primary importance.

Unborn and newly born children have no voice. They have been brought, without choice and without their rights being ascertained and without their equal opportunity concerns receiving a hearing, into a new world. Of course, it is not possible. Children should never be fashion statements or trophies, as they are sometimes referred to and as they can sometimes appear to be in the arms of celebrities whom we see occasionally on television. They are their own individuals and deserve to be respected no matter what.

Deborah Pearce maintained that she had the right to a child. She took the South Australian Health Commission to court saying that it was discriminatory that she (as a single woman) was refused access to assisted reproductive technology. She separated from her husband in 1994, was residing alone, but wanted a child. I have the 1996 judgment in the case in which the Full Court agreed with her, and this judgment is one of the reasons why we are here today debating the removal of the marriage requirement from the act.

The act currently requires marriage, but that provision was deemed to be in conflict with section 22 of the commonwealth Sex Discrimination Act. The argument is that the wording must be brought into line with this decision. It is said that the decision has already been made and the legislature's hands are tied. However, that does not mean that we are unable to raise concerns with the decision of the court or its ramifications.

The argument is now extended to allow a woman to use a deceased partner's sperm. It has been widely publicised in the media—and I am sure members would be aware—that a particular woman (and there may be others) wants to conceive a child in this way and has been vocal to members of parliament. I should say that I feel tremendously saddened for the loss of her husband and I certainly sympathise for the desperate desire that she must feel to conceive a child using the sperm collected before his death. This is a complicated issue as she will be bringing a child into the world without any prospect of its ever knowing its natural father due to the tragic circumstances of his death. I think, at the very least, members would agree that that is not an ideal situation and, indeed, I am sure that the woman involved in this case would agree with that herself.

In proposed amendments by the Hon. Mr Hunter (which Family First opposes), the argument is extended even further; that is, two lesbians or two homosexual men may feel that they have a right to conceive a child. But is it fair to bring a child into the world without any possibility of ever knowing a mum—in the case of two dads—or a dad—in the case of two women or two lesbians? Is it possible that two dads or two mums can fully replace the unique roles played by a mum and a dad? I do not believe so. The real question is: how are the best interests of the child served?

Single mothers often move heaven and earth for their kids. There is no criticism of them here on that basis; in fact, I have the greatest respect for them. Indeed, many single mothers, I think, face a task that many of us would find completely onerous. However, the plain facts are that, often through absolutely no fault of their own, the lack of a dad (according to solid research) does put kids at higher risk of being involved in crime, drugs and relationship issues later in life.

One social worker recently went on the record to say of the gangs that he works with that 'almost 100 per cent' of these kids are from 'single parent families or blended families'. Single dad families also deserve our greatest respect. Of course, there are some things that mums can do that dads cannot—and obviously breastfeeding is one of those. Recently, someone said:

In the West we have been having an argument that goes way back to Plato, and probably before. And it's an argument about the one and the many. The rights of the few versus the rights of the many…That argument unifies us. In some cultures the big argument has been the rights of the dead versus the rights of the living. Are we allowed to think new thoughts, or do we have to be faithful in the way of our ancestors who did things a certain way? An argument that we now desperately need is what about the rights of the living versus the rights of the not yet living?

I encourage members to consider the rights of those children not yet living, for whom this bill decrees will be born without one of their parents. In due course I will table an amendment to the bill to provide that in any consideration of the application of assisted reproductive technology the best interests of children should remain the paramount consideration, as is currently the case in law.

Debate adjourned on motion of Hon. C. Zollo.

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